M.A.G., Inc.

Plain-English summary

M.A.G., Inc. failed to answer the Secretary's civil penalty proposal and an order to show cause, so the Chief Administrative Law Judge entered six default orders assessing $14,370 in proposed penalties. M.A.G.'s president later sent the Commission a letter asking to withdraw the defaults and address the penalties. The Commission treated the letter as a timely petition for discretionary review, vacated the default orders, and remanded the cases so the judge could decide whether final relief from default was warranted. The Commission did not decide the merits of the penalties.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.65(c) and 2700.70(a)
• Outcome: Six default orders were vacated and the matters were remanded for further proceedings.
• Key point: A timely letter can be treated as a petition for discretionary review, but the judge must decide the merits of relief from default.

Full text (FMSHRC public release)

                                  April 26, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEVA 92-1021
: WEVA 92-1046
M.A.G., INC. : WEVA 92-1047
: WEVA 92-1048
: WEVA 92-1072
: WEVA 92-1073

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                        ORDER

BY THE COMMISSION:

  In these civil penalty proceedings arising under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the "Mine Act"),
Commission Chief Administrative Law Judge Paul Merlin issued six Orders of
Default on March 17, 1993, finding respondent M.A.G., Inc. ("M.A.G.") in
default for failing to answer the civil penalty proposal of the Secretary of
Labor ("Secretary") and the judge's December 10, 1992, Order to Show Cause.
The judge assessed civil penalties of $14,370 as proposed by the Secretary.
For the reasons that follow, we vacate the default orders and remand the cases
for further proceedings.

  The judge's jurisdiction over these cases terminated when his decision

was issued on March 17, 1993. 29 C.F.R. 2700.65(c). On April 15, 1993,
Michael Stanley, President of M.A.G., filed a letter with the Commission
appealing the judge's default orders. Mr. Stanley requests that the default
orders be withdrawn and that M.A.G. be given an opportunity to address the
penalty assessments.

   Under the Mine Act and the Commission's procedural rules, relief from a

judge's decision may be sought by filing a petition for discretionary review
with the Commission within 30 days of the decision. 30 U.S.C. 823(d)(2); 29
C.F.R. 2700.70(a). We will treat M.A.G.'s letter as a timely filed petition
for discretionary review of the decision. See e.g., Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988). On the basis of the present record, we
are unable to evaluate the merits of M.A.G.'s position. In the interest of
justice, we will permit M.A.G. to present its position to the judge, who shall
determine whether final relief from the default orders is warranted.

  Accordingly, we vacate the judge's default orders and remand these

matters for further proceedings.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner


                                L. Clair Nelson, Commissioner